H v United States of America

In extradition cases engaging Art. 8, the court must make a fact-specific proportionality assessment between the rights of the requested person and dependent children and the public interest in extradition and treaty compliance. The child’s best interests are a primary consideration, but there is no exceptionality test. The seriousness of the alleged offending, assessed by reference to the likely domestic sentencing outcome, is ordinarily of central importance. Extradition will be avoided only in very rare cases where the family’s rights outweigh that public interest. A substantial risk of suicide requires a separate overall assessment, including the availability of protective measures in the requesting state.

The United States sought H’s extradition to face allegations of importing and supplying controlled drugs and medicines and laundering the proceeds. District Judge Zani sent the case to the Secretary of State, who ordered extradition. H appealed, principally arguing that extradition would disproportionately interfere with her and her daughter M’s family life under Art. 8 and section 87 of the Extradition Act 2003. She also relied on passage of time under section 82 and her mental condition under section 91.

The appeal was complicated by uncertainty about M’s care and the possible delay caused by the proposed joint trial with H’s former husband. The central questions were whether those matters made extradition disproportionate or oppressive.

1. Appeal dismissed. The court applied the principles in H(H) v Deputy Prosecutor of the Italian Republic [2012] UKSC 25. A value judgment was required between H’s and M’s Art. 8 rights and the substantial public interest in extradition and compliance with treaty obligations.

2. M’s best interests were a primary consideration. The court had to examine the practical consequences of separation carefully and could not simply assume that the public interest would always prevail. Separate representation for M was not generally necessary where the court had sufficient information about her interests. Family care was likely to be available and, if it was not, Essex County Council had a care plan under section 20 of the Children Act 1989.

3. The alleged offending involved sophisticated and sustained drug trafficking and money laundering. Anyone convicted of equivalent conduct domestically would realistically receive an immediate and substantial custodial sentence. That was a powerful indication that the public interest in extradition outweighed the family impact. H’s denial of wrongdoing, alleged abuse and possible assistance to the US were matters for the trial and did not reduce the weight of extradition.

4. The absence of a US prosecutorial assurance about bail was regrettable, particularly given the possible delay awaiting W’s extradition from South Africa. Nevertheless, H had a right to a speedy trial under section 3161(c)(1) of the Speedy Trial Act, and could thereby avoid lengthy pre-trial detention. The court also placed confidence in the US judge to address bail fairly. The case was distinguished from Government of the United States v Shlesinger [2013] EWHC 2671 (Admin), where the alleged criminality was materially less serious.

5. The period between the alleged offending and the extradition request did not amount to relevant delay or make extradition unjust or oppressive under section 82.

6. The mental-condition ground failed under section 91. Applying Wolkowicz v Regional Court, Poland [2013] EWHC 102 (Admin) and Turner v Government of the United States of America [2012] EWHC 2426 (Admin), the evidence did not establish that H’s condition removed her capacity to resist suicide or that protective arrangements in the United Kingdom or United States were inadequate.

1. High Court (Administrative Court): H’s appeal against the extradition order made by District Judge Zani was dismissed. The court also dismissed the grounds based on sections 82 and 91 of the Extradition Act 2003.