HH, R (on the application of) v City of Westminster Magistrates Court

On an extradition appeal, the court must determine whether new evidence would have required the extradition judge to order discharge. Under section 25 of the Extradition Act 2003, the question is whether the person’s physical or mental condition makes extradition unjust or oppressive; diagnosis is not decisive. Under Article 8, the family unit and the rights of each member must be considered. The best interests of affected children are a primary consideration, but they do not generally override the powerful and constant public interest in extradition. Only an exceptionally compelling feature producing exceptionally grave interference with family life will justify discharge. The severe disruption normally caused by extradition, even where both parents are sought and young children may require public care, did not meet that threshold here.

HH and PH had been convicted in Italy of serious drug offences and were subject to European arrest warrants. HH challenged the refusal to adjourn her extradition hearing under section 25 of the Extradition Act 2003 and appealed her extradition order. PH appealed his own extradition order. The proceedings also concerned the effect of extradition on their three children, who intervened through the Official Solicitor.

The principal issues were whether HH’s mental condition made extradition oppressive, whether fresh evidence satisfied section 27(4) of the 2003 Act, and whether extradition would breach Article 8 of the ECHR because of the consequences for the family. The court also considered the validity and handling of the European arrest warrants.

1. Appeals dismissed. HH was not entitled to discharge under section 25(2) of the Extradition Act 2003, and the extradition of either appellant was not disproportionate under Article 8.
2. On section 27(4), the question was whether evidence unavailable to the District Judge would have led to a different answer under section 25(2), resulting in mandatory discharge. The High Court was not confined to ordinary judicial review principles, but required an objective basis to disturb factual findings made on the evidence before the District Judge. The judge was entitled to rely on evidence heard in earlier proceedings when determining the later conviction-warrant proceedings, while applying the statutory requirements afresh.
3. Section 25 focuses on whether extradition would be unjust or oppressive by reason of the person’s condition, not on whether a recognised psychiatric diagnosis has been established. HH’s presentation was capable of being an extreme reaction to the extradition proceedings rather than deliberate fabrication or mental illness. On the evidence, her condition did not make extradition oppressive. The approach was consistent with Boudhiba [2006] EWHC Admin 167.
4. Article 8 required consideration of the family unit as a whole and of the rights of each family member. Norris v USA [2010] UKSC 9 remained determinative of the legal approach to extradition. ZH (Tanzania) [2011] UKSC 4 did not depart from it. The best interests of affected children were a primary consideration, but not the paramount consideration. The public interest in extradition was a constant and powerful factor, particularly in relation to grave offences.
5. The likely separation of three young children from both parents, the absence of obvious family care, and the resulting distress were exceptionally serious consequences. They nevertheless disclosed no feature specific to this family sufficiently pressing to outweigh the public interest in extradition. The children’s rights had properly been considered, and there was no absolute bar on their separate representation, although such representation should remain rare.

The judgment itself describes the proceedings before the City of Westminster Magistrates Court. The District Judge ordered HH’s extradition on 14 April 2010 and PH’s extradition on 21 June 2010. The High Court dismissed both statutory appeals and refused relief on the judicial review issues.