Wilby & Ors v The Municipal Court Prague, Czech Republic

For extradition to a category 1 territory, the applicant bears a heavy burden of showing a real risk of future treatment contrary to article 3 of the Convention. Medical cases require exceptionally compelling humanitarian grounds, and the possibility of poorer treatment or medical facilities abroad is insufficient. The section 25 threshold is very high and approaches, though does not exactly replicate, the article 3 threshold. Past ill-treatment is relevant only insofar as it bears on future risk; extradition is not a means of punishing a requesting state for past failures. Article 8 requires proof that extradition would produce the gravest effects on family or private life and would be disproportionate. These principles also apply where the applicant relies on physical or mental illness and previous deficiencies in detention.

Timothy Wilby and Julian Halliday appealed against orders made on 30 September 2011 by District Judge John Zani ordering their extradition to the Czech Republic under European arrest warrants. Each was wanted for prosecution for an offence involving the illegal production and possession of narcotic and psychotropic drugs.

Both appellants relied on section 25 of the Extradition Act 2003, contending that extradition would be unjust or oppressive because of their physical or mental condition. Mr Wilby additionally relied on section 21 and articles 3 and 8 of the Convention, and later invoked section 14 because of the passage of time. The central issues were whether their medical conditions, their previous treatment in Czech custody, and the arrangements proposed for their return created a statutory or Convention bar.

1. The appeals were dismissed. The district judge had not erred in law in rejecting the statutory and Convention objections. The court nevertheless directed that extradition should not take place until the beginning of June because Mr Wilby was about to undergo minor hernia surgery. The required period under section 36 of the Extradition Act 2003 would begin when the appellate decision became final or on 1 June, whichever was later.
2. The threshold under section 25 of the Extradition Act 2003 is very high and approaches the threshold for article 3, although the two tests are not identical. The authorities’ past treatment of Mr Wilby was relevant, but the court had to assess the risk on a controlled and properly documented return in the present circumstances.
3. For a category 1 territory, the starting point is an assumption that the requesting state will fulfil its Convention obligations. The applicant bears a heavy burden, and a mere possibility of breach is insufficient. In cases involving indirect conduct, such as unavailable medical treatment, article 3 is engaged only in very exceptional circumstances, where the illness has reached a critical stage and compelling humanitarian grounds against removal are shown.
4. The court accepted that Mr Wilby had experienced serious difficulties, including delay in obtaining medication and poor treatment by individual prison staff. However, the medical care provided was of a reasonable standard and within a reasonable time. The problems with payment were bureaucratic rather than a systemic failure or wilful neglect, and were capable of being avoided on an orderly return with medical records, medication and health insurance.
5. Mr Halliday’s serious and multiple medical conditions did not surmount the applicable thresholds. The Czech authorities were aware of his history, had previously arranged treatment, and had indicated that imprisonment was unlikely or subject to continuing medical review. Mr Wilby’s liver condition had also settled sufficiently for the risk of recurrence to be remote, with the authorities informed of the need for urgent treatment if it recurred.
6. Article 8 likewise required proof that extradition would be a disproportionate interference with family or private life. The upsetting and unpleasant consequences of return did not approach that high threshold. The passage of time added nothing distinct to Mr Wilby’s section 25 case because the later liver condition had already been considered.

• High Court (Administrative Court): Appeals against the extradition orders made by District Judge John Zani on 30 September 2011 were dismissed. Extradition was deferred until the beginning of June, and the statutory required period under section 36 of the Extradition Act 2003 was adjusted accordingly.