Dunham & Anor v and Government of the United States

Extradition will be disproportionate under article 8 only where the interference with private or family life is exceptionally severe and outweighs the constant public interest in bringing persons accused of crime to trial. The gravity of the alleged offences, delay, and the likely impact of detention are relevant factors. Allegations that the prosecution is abusive will rarely be resolved by the requested state where they depend on disputed evidence and are not attributable to the requesting authority. An appellate court must also balance finality with its continuing duty to consider human-rights issues.

The United States sought the extradition of Paul and Sandra Dunham to face dishonesty charges arising from alleged misuse of company credit cards and false expense claims. A District Judge found no bar to extradition and sent the case to the Secretary of State, who ordered extradition. The Secretary of State was subsequently removed from the appeal by consent.

The appellants relied on article 8, alleging abuse of process, insufficient offence gravity, delay, severe mental-health consequences, and harsh pre-trial detention conditions in the United States. The Administrative Court considered whether those matters made extradition disproportionate.

1. Appeal dismissed. The court applied the principles in Norris v USA (No.2) [2010] UKSC 9 and HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25. The question was whether the interference with the appellants’ private and family lives was outweighed by the weighty public interest in extradition. That public interest varies with the gravity of the alleged offences, and delay may reduce it or increase the impact on family life. Extradition will generally be disproportionate only where the consequences are exceptionally severe.
2. The abuse-of-process argument failed. The jurisdiction is residual and concerns abuse by the prosecuting authority, such as a collateral purpose or knowledge that the trial cannot succeed. The alleged facts were disputed and could not properly be resolved in extradition proceedings. The charges were supported by documentary evidence and were not based solely on the alleged actions of the appellants’ former employer.
3. The alleged conduct involved a substantial and protracted fraud carried out in breach of trust. The fact that English law would not permit a conspiracy charge between spouses did not materially reduce the public interest, since the alleged conduct would nevertheless constitute criminal conduct in England and Wales.
4. The court recognised a tension between finality and the duty to consider human-rights issues at all stages. The principles in Ladd v Marshall [1954] 1 WLR 1489 ordinarily governed fresh evidence, but that tension did not require resolution because permission to adduce the new evidence had already been given.
5. The medical evidence did not establish the threshold in section 91 of the Extradition Act 2003. Mr Dunham’s adjustment disorder arose from the stress and uncertainty of the legal proceedings. Although detention would be harsh and might involve inadequate mental-health treatment, the evidence did not show an exceptionally severe interference with article 8 rights. The appeal was dismissed.
6. Lord Justice Beatson agreed with the judgment. He added that, when the tension concerning fresh evidence and human rights is resolved, the court’s appellate jurisdiction under section 103 of the Extradition Act 2003 may be relevant. He referred to Re B (A Child) (FC) [2013] UKSC 33.

1. Westminster Magistrates’ Court: District Judge Zani found no bar to extradition and sent the cases to the Secretary of State on 8 July 2013.
2. Secretary of State: Extradition was ordered on 23 August 2013. The appeal against the Secretary of State was dismissed by consent.
3. High Court (Administrative Court): The appeal against the District Judge’s decision was dismissed.