Savage v United States of America

Fresh evidence on an extradition appeal must ordinarily have been unavailable at the original hearing and must be decisive. Evidence which merely repairs weaknesses in the case presented below will not normally satisfy that requirement.

Where suicide risk is relied on under section 91 of the Extradition Act 2003, the court must make an overall judgment on the evidence. Relevant considerations include the seriousness and nature of the mental condition, the person’s capacity to resist the impulse to commit suicide, the actual evidence of risk, available protective arrangements in the requesting state, and the public interest in fulfilling extradition obligations.

Article 8 requires a fact-specific proportionality assessment. The possibility of prosecution in the United Kingdom should generally be considered only where the proportionality scales are finely balanced.

The United States sought the extradition of Guy Savage, a Category 2 requested person, for alleged offences involving the fraudulent evasion of restrictions on the import and export of firearms and firearms components.

On 30 November 2011 District Judge Nicholas Evans sent the case to the Secretary of State. On appeal, the appellant relied on fresh psychiatric and other evidence concerning severe depression and suicide risk. He argued that extradition would be unjust or oppressive under section 91 of the Extradition Act 2003 and disproportionate under Article 8 of the Convention.

The central questions were whether the further evidence was admissible, whether it was decisive on oppression, and whether extradition would breach Article 8.

1. The appeal was dismissed. The further evidence was admitted, but it did not satisfy the decisive-evidence requirement under sections 104(3) and 104(4) of the Extradition Act 2003.
2. Following Three Hungarian Judicial Authorities v Fenyvesi [2009] EWHC 231 (Admin), evidence is not ordinarily unavailable merely because it was not used below. It must either not have existed or not have been at the party’s disposal and obtainable with reasonable diligence. Even where human rights are relied on, the fresh evidence must be capable of producing a different result. The principles applied equally to section 104(4), as explained in Richen Turner v Government of the United States of America [2012] EWHC 2426 (Admin).
3. The court accepted that the further psychiatric evidence might be admitted in the exceptional circumstances of the case. It nevertheless held that it was not decisive. There had been no corroborated history of actual self-harm, the appellant retained a substantial capacity for rational choice, and the evidence of suicide risk was partly based on what he might do if extradited.
4. The court applied the principles identified in Turner, including the need for an overall assessment, the high threshold for oppression, the need for a substantial risk of suicide, the relevance of capacity to resist the impulse, the adequacy of protective arrangements in the requesting state, and the public interest in extradition treaties. The United States Bureau of Prisons was shown to have mental-health and suicide-prevention arrangements, and there was no evidence of systematic failure.
5. Under Article 8, the assessment was fact-specific and required unusually or exceptionally compelling features before extradition could be disproportionate. The court applied Norris v Government of the United States of America [2010] 2 AC 487 and treated the possibility of prosecution in the United Kingdom as irrelevant because the proportionality scales were not finely balanced. The description of exceptionality in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 was understood as a prediction rather than a legal test.
6. Neither section 91 nor Article 8 prevented extradition.

• High Court (Administrative Court): The appeal from the decision of District Judge Nicholas Evans was dismissed. The District Judge had sent the case to the Secretary of State on 30 November 2011.