Clark v Secretary of State for the Home Department & Anor

After the final judicial stage of extradition proceedings, the Secretary of State may exceptionally consider genuinely fresh evidence showing that removal would breach Convention rights. Evidence readily available earlier, or inadequately explained as late, will not ordinarily satisfy that requirement.

For Article 8, the court must assess objectively whether extradition would be a disproportionate interference with private life. The public interest in extradition between friendly states is strong. Delay and mental-health evidence must be considered in the round, but moderate PTSD and concerns about participation in foreign proceedings will rarely outweigh that interest without a truly cogent case.

The claimant faced extradition to the United States under Part 2 of the Extradition Act 2003 on a charge of international parental kidnapping. Earlier proceedings had rejected arguments based on delay, oppression and an alleged limitation bar.

After those proceedings, the claimant relied on reports diagnosing domestic-abuse-related PTSD and argued that extradition would breach Articles 3 and 8 of the Convention. The Secretary of State maintained the extradition order after reconsidering the evidence. Following refusal of permission on the papers by Irwin J, the claimant renewed her application for judicial review.

The central issues were whether the evidence was genuinely fresh and whether, viewing the evidence objectively and taking delay and other matters into account, extradition would be a disproportionate interference with private life.

1. Outcome. The renewed application for permission to apply for judicial review was refused.
2. Fresh evidence. The Secretary of State’s exceptional post-extradition jurisdiction is limited to matters arising after the final judicial stage which may make removal contrary to Convention rights. The policy of the Extradition Act 2003 is to prevent serial applications on matters already raised, or which should have been raised, earlier. The claimant’s domestic-violence material and the basis for the later PTSD diagnosis were substantially available before the earlier proceedings, and the explanations for the delay were inadequate. The court was therefore dubious that the fresh-evidence requirement was met: [2007] EWHC 762 (Admin); [2009] EWHC 170 (Admin); [2009] EWHC 231 (Admin).
3. Article 8 assessment. For the purposes of the application, the court adopted an objective assessment of whether the evidence established an arguable case of disproportionate interference, going beyond ordinary Wednesbury review: [2009] EWHC 2021 (Admin). Article 8 protects physical and mental integrity, but extradition pursues the legitimate aim of giving effect to international arrangements. The decisive question was proportionality.
4. Balancing factors. The public interest in extradition between friendly nations is substantial, and Article 8 arguments will only rarely prevail: [2010] 2 AC 487. The seriousness of removing children without parental consent, the absence of sufficient evidence of improper pressure, and the safeguards available in the United States weighed against the claimant. Delay could be considered in the Article 8 balance even though the formal oppression argument had previously failed. However, the claimant had been aware of the proceedings, had taken steps not to alert the United States authorities to her whereabouts, and there was no fault by those authorities. The delay therefore carried limited weight. The diagnosis was of moderate PTSD, without severe mental illness, and the concerns about participation in proceedings were insufficiently cogent to make extradition disproportionate. The later authorities did not alter that conclusion: [2013] 1 AC 338.
5. Procedure. Judicial review was the proper route to challenge the Secretary of State’s later decision. Reopening the earlier High Court appeal under CPR r 52.17 was a last-resort course unavailable where the Secretary of State’s decision itself could be challenged by judicial review: [2009] EWHC 1020 (Admin).

This was a renewed application for permission to seek judicial review after permission had been refused on the papers by Irwin J. Earlier extradition proceedings had resulted in a High Court decision dismissing an appeal from the Senior District Judge: [2012] EWHC 957 (Admin).