McIntyre v Government of the United States of America and the Home Secretary

A late human-rights appeal against extradition under section 108(5)–(8) of the Extradition Act 2003 may be considered only where this is necessary to avoid real injustice and exceptional circumstances make consideration appropriate. Ordinarily, the requested person must identify a supervening development and reasonably explain why the issue was not anticipated earlier.

The application must be made promptly, supported almost immediately by the evidence relied upon, and must not be used to delay extradition. Evidence obtained after an earlier appeal is not itself a supervening event where the underlying condition and issue were already known and could reasonably have been raised.

The appellant challenged his extradition to the United States to face allegations of conspiracy to defraud and payment of a gratuity. His earlier appeal had been dismissed in [2013] EWHC 453 (Admin) after psychiatric evidence was not produced within the court’s timetable.

He subsequently relied on reports diagnosing post-traumatic stress disorder and identifying a high suicide risk, together with evidence concerning prison conditions and treatment in the United States. He brought a human-rights appeal under the newly inserted section 108(5)–(8) of the Extradition Act 2003.

The central issues were how the new jurisdiction should operate and whether the later evidence disclosed exceptional circumstances making consideration of the appeal necessary to avoid real injustice.

1. Appeal dismissed. Section 108(7) of the Extradition Act 2003 required both necessity to avoid real injustice and exceptional circumstances making it appropriate to consider the late appeal. The statutory language should be applied without embellishment from earlier case law. Given the purpose of finality in extradition proceedings, a requested person would ordinarily need to show a supervening development or event and reasonably explain why the issue was not anticipated at the extradition hearing or an earlier appeal.

2. The appellant’s mental health, possible post-traumatic stress disorder, suicide risk and need for treatment had been live issues since at least September 2012. The subsequent psychiatric report did not constitute a change of circumstances merely because the evidence had finally been obtained. The relevant issues could and should have been raised in the earlier appeal, and there was no reasonable explanation for the failure to do so. The circumstances were therefore not exceptional and no injustice arose.

3. Applications under section 108(5)–(8) must be brought promptly. Supporting evidence should accompany the application or follow within days. Directions must be obeyed strictly, and the matter should generally be resolved at one hearing so that the jurisdiction is not used to delay extradition.

4. Although unnecessary to the disposition, the evidence would not have established a breach of article 3. Suicide risk had to be assessed while the requested person remained in the United Kingdom, during transfer, and after arrival. Appropriate preventive arrangements could be made in the United Kingdom and during transfer. The evidence did not show that the United States authorities could not address the suicide risk or that the available treatment would reach the severity required by article 3.

5. Extradition would also not have been disproportionate under article 8. The circumstances did not approach the standard required by the governing Supreme Court authorities.

6. Orders governing evidence and skeleton arguments in extradition appeals must be obeyed. Where supervening circumstances prevent compliance, an application for additional time must be made before the deadline and supported by a proper explanation. Otherwise the court may exclude the evidence or refuse to hear the argument.

1. High Court (Administrative Court): The present court dismissed the late human-rights appeal under section 108(5)–(8) of the Extradition Act 2003.

2. Divisional Court: The appellant’s original appeal was dismissed in [2013] EWHC 453 (Admin) after the court refused an adjournment sought to obtain further psychiatric evidence. The court later refused to certify a point of law of general public importance.

3. Secretary of State: The Secretary of State ordered extradition under section 93(4) of the Extradition Act 2003. She later declined to withdraw the order, concluding that there was no new or supervening issue and, alternatively, no incompatibility with articles 2, 3 or 8.

4. City of Westminster Magistrates’ Court: The District Judge sent the case to the Secretary of State and refused an adjournment sought for a psychiatric assessment.