Hamza & Ors v Secretary of State for the Home Department

After the statutory extradition process and Strasbourg proceedings have concluded, a requested person must raise any further point at the earliest proper opportunity. A later challenge requires clear, compelling new evidence showing a material change of circumstances. A mere weakening of an established prima facie case is insufficient.

Under the Extradition Act 2003, the possibility of domestic prosecution does not generally suspend extradition. Forum is relevant only through an established human-rights consequence or another statutory bar. Fitness to plead is ordinarily determined by the trial state, except in exceptional circumstances.

Five claimants sought judicial review and stays of extradition to the United States. Four challenged the conditions at ADX Florence under articles 3 and 6 of the Convention. Other challenges relied on alleged new evidence affecting the prima facie case, deterioration in psychiatric condition, possible unfitness to plead, and the possibility of prosecution in the United Kingdom.

The claims followed lengthy extradition proceedings, earlier domestic appeals, and unsuccessful applications to the European Court of Human Rights. The central questions were whether the issues could be reopened and whether the new material justified preventing extradition.

1. ADX Florence. The court rejected the alleged errors in the Fourth Section’s assessment of the evidence and found no arguable basis for concluding that the ECtHR had misunderstood the distinction between the General Population and Special Security Unit programmes. The refusal to admit further statistical material did not breach article 6 or fundamental principles of fairness. Under section 2 of the Human Rights Act 1998, the court was required to take the Strasbourg decision into account, and found no reason to depart from its clear and cogent conclusion that extradition would not breach article 3.
2. 1989 Act cases. Under paragraph 8(2) of Schedule 1 to the Extradition Act 1989, the Secretary of State’s late-stage discretion could be engaged only by a significant change of circumstances or sufficiently compelling new evidence showing that extradition had become wrong, unjust, oppressive or incompatible with Convention rights. It was insufficient merely to cast doubt on prosecution evidence or weaken an established prima facie case. The applications of Al Fawaz and Abdel Bary therefore failed.
3. Abu Hamza. The court did not resolve whether the proper route was reopening the statutory appeal or judicial review. On either approach, the evidence did not show that immediate extradition would be unjust, oppressive or contrary to Convention rights. Fitness to plead was ordinarily for the courts of the trial state, and the possible causes of the reported symptoms did not constitute exceptional circumstances.
4. Domestic prosecution. The Extradition Act 2003 did not give general primacy to possible domestic proceedings. Section 88 identified the point at which domestic criminal proceedings affected extradition, namely when the requested person had been charged. After the statutory process had concluded, intervention required new and compelling evidence. The challenges to the DPP’s refusal to prosecute and consent to private prosecutions were therefore rejected.
5. All applications for permission to seek judicial review or to reopen the statutory appeals were dismissed. Extradition to the United States could proceed immediately.

Not an appeal from a lower-court judgment. The court considered the consequences of earlier domestic extradition decisions and unsuccessful proceedings before the European Court of Human Rights, but dismissed the present applications.