Pham v The United States of America

In extradition proceedings, the requested person must show a real risk of a flagrant denial of justice before Article 6 prevents extradition. Speculation about interrogation methods, prison conditions, evidential rulings, surveillance or trial disadvantages is insufficient. A long determinate sentence is not equivalent to a whole-life sentence without parole merely because the offender may die before its completion. Article 3 disproportionality is reserved for rare and very exceptional cases. Under the statutory forum bar, extradition is barred only if both a substantial measure of relevant activity occurred in the United Kingdom and, having regard only to the specified interests-of-justice matters, extradition should not take place.

The United States sought the appellant’s extradition to face five terrorism-related charges. A District Judge rejected challenges based on alleged torture-derived evidence, Article 3 and Article 6 risks, prison conditions, sentence length, mental health, family life, bias and the statutory forum bar. The Secretary of State ordered extradition, and the appellant appealed under section 103 of the Extradition Act 2003.

The Administrative Court considered whether the District Judge had erred in law or fact on those grounds, including whether the appellant’s possible loss of British citizenship affected his Article 6 rights.

1. Appeal dismissed. The court rejected every ground of appeal.
2. For the alleged torture or Article 3 ill-treatment of the proposed witness, the court accepted for present purposes the appellant’s common-law and Convention propositions. Nevertheless, there was insufficient evidence of the conditions of detention, the identity of the interrogators or any prohibited treatment. The evidence to be used at trial was based on later FBI interviews conducted after the witness had been advised of his rights and had access to counsel. Background evidence from other cases could not establish a real risk in this case.
3. Applying Othman, the appellant had to show substantial grounds for believing that extradition would expose him to a real risk of a flagrant denial of justice. The proposed witness’s evidence would be tested in a normal criminal trial, with cross-examination and procedures for challenging allegedly coerced evidence. The case-agent evidence and possible restrictions on classified material were speculative and did not meet the threshold.
4. The possible use of special administrative measures and a FISA warrant did not establish a flagrant breach of Article 6. The precise measures were unknown, and safeguards existed for intercepted legally privileged material.
5. Article 3 would bar extradition if there were a real risk that detention at ADX, Colorado, would reach the minimum level of severity. The evidence, including periodic review of ADX placement, did not establish that threshold.
6. A determinate sentence of 30 to 45 years would not become a de facto whole-life sentence merely because it was lengthy. The principles concerning irreducible whole-life sentences in Vinter and Trabelsi did not apply wholesale to such a sentence. Gross disproportionality remained a strict test reserved for rare and unique cases, and was not established.
7. The appellant’s mental condition did not make extradition oppressive under section 91 of the Extradition Act 2003, nor materially affect the Article 3 issues. The court criticised the handling and disclosure of expert evidence but did not attribute that fault to the appellant personally.
8. The interference with family life was outweighed by the strong public interest in extradition. The forum bar could not apply because no substantial measure of the appellant’s relevant activity material to the extradition offences had been performed in the United Kingdom. The appellant’s citizenship status would not alter the Article 6 test applicable to the prospective United States trial.

• High Court (Administrative Court): dismissed the appeal against the District Judge’s decision to send the extradition request to the Secretary of State. The Secretary of State had ordered extradition on 22 January 2014.
• District Judge: rejected the appellant’s grounds of challenge and sent the case to the Secretary of State under section 87(3) of the Extradition Act 2003.