Harjette v Central Investigating Court Number 2 Madrid Spain

Extradition may be disproportionate under Article 8 of the European Convention where the requested person has terminal illness, faces a substantial risk of severe suffering or death in custody, and the requesting state has failed to provide material information about continuing treatment. Such relief is exceptional. The court must assess the person’s actual medical condition rather than rely on general assumptions about the availability of treatment. Unanswered, reasonable requests for information may materially affect the proportionality assessment. Interference with established family life may itself support a finding that extradition would be disproportionate.

The appellant appealed under section 26 of the Extradition Act 2003 against a District Judge’s decision of 3 October 2014 ordering his extradition to Spain to stand trial for serious fraud offences. He had terminal prostate cancer which had spread to his lungs and bones and was receiving palliative and hormonal treatment in England.

The Spanish authorities had not answered requests concerning whether relevant treatment would be available in Spain. The central issues were whether extradition would be oppressive under section 14 of the Act or disproportionate under Article 8 of the European Convention.

1. Appeal allowed. The appellant’s terminal cancer, the risk of severe pain and deterioration, the uncertain prognosis, and the possibility that he would die without his family constituted exceptional circumstances.
2. The District Judge had treated the appellant’s condition too generally by referring to prostate cancer as a common condition. The relevant question was the appellant’s actual condition: cancer that had metastasised to his lungs and bones, with potentially intense pain and limited palliative options.
3. The failure of the Spanish judicial authority to answer reasonable questions about the availability of treatment left the court unable to assess whether the appellant could receive necessary care in Spain. That uncertainty was material to the proportionality decision. The District Judge’s conclusion that treatment would continue was not justified by the evidence and might involve an error of fact.
4. Section 21A of the Extradition Act 2003 did not require a separate proportionality assessment because the offences were serious and carried imprisonment. Section 21B was not relied on and no arrangements had been made with Spain under it.
5. Although oppression under section 14 presented a higher hurdle, the better basis for decision was Article 8. Extradition would interfere with the appellant’s family life and, in the exceptional circumstances, would be disproportionate.
6. The appeal was allowed. The court considered that it had power under section 62 to award the appellant’s defence costs in the lower court, but was uncertain that it had power to order costs in the Administrative Court.

• High Court (Administrative Court): On 8 December 2014, Collins J allowed the appeal against the District Judge’s decision of 3 October 2014 ordering extradition to Spain.