Devani v Republic of Kenya

For a Part 2 extradition request under section 84(1) of the Extradition Act 2003, the court must identify the essence of the alleged conduct, determine whether that conduct would constitute an offence in the United Kingdom, and decide whether the admissible evidence discloses a case to answer on one possible view of the facts. The court must consider all admissible evidence, including evidence called by the requested person. The Article 6 extradition threshold is stringent: the alleged unfairness must create a real risk of a flagrant denial of justice that destroys the essence of the right to a fair trial. Separate trials, procedural delay and evidence given in the accused’s absence do not by themselves meet that threshold where effective remedies remain available. Article 3 requires a real risk of treatment reaching the minimum level of severity, assessed by reference to prison conditions as a whole.

The applicant faced two extradition requests from Kenya concerning alleged frauds involving petroleum products, banks and other companies. The District Judge dismissed his challenges and sent the requests to the Secretary of State, who ordered extradition. The applicant appealed on the grounds that the evidence did not establish a prima facie case under section 84(1) of the Extradition Act 2003, that the proceedings were an abuse of process, and that extradition would breach Articles 3 and 6 of the European Convention on Human Rights. He also sought to rely on fresh evidence concerning separate criminal proceedings already under way in Kenya, the fairness of those proceedings and prison conditions.

The central issues were the correct evidential test, whether it was satisfied on the charges, whether the alleged conduct amounted to an abuse of process, and whether extradition exposed the applicant to a real risk of a flagrant denial of justice or inhuman or degrading treatment.

1. Appeal dismissed. The court rejected all challenges to extradition and held that the fresh evidence would not have produced a different result.
2. Under section 84(1) of the Extradition Act 2003, the court must identify the essence of the conduct alleged, ask whether that conduct would amount to an offence under United Kingdom law, and then determine whether, on one possible view of the facts, the admissible evidence could support a conviction at a summary trial on the notional English charges. The evidence considered must include admissible evidence called by the requested person.
3. The District Judge had applied that test correctly. The alleged dealings with petroleum held in an undivided bulk could give rise to proprietary or possessory interests. An attornment by the storage bailee could place a financier in constructive possession. Unauthorised dealings could therefore constitute conversion or appropriation, and the evidence was sufficient to support possible charges of theft and conspiracy to defraud.
4. The residual abuse-of-process jurisdiction required both a usurpation of the statutory extradition regime and unfair or unjust prejudice. The allegation that the Kenyan prosecuting authority had misled the District Judge was rejected. Even if the alleged omissions had been established, they would not have provided a defence to extradition or caused the necessary unfair prejudice.
5. The Article 6 test, derived from Othman v United Kingdom (2012) 55 EHRR 1 and Kapri v Lord Advocate [2013] 1 WLR 2324, was not met. Four separate trials, evidence already given in the applicant’s absence and delay did not establish a real risk of a flagrant denial of justice. Kenyan law provided potential remedies, including a fresh trial and challenges to evidence already received.
6. The Article 3 challenge also failed. The evidence did not establish a real risk that detention in Kamiti prison would involve treatment reaching the required minimum level of severity. General evidence of cholera in Kenya did not establish such a risk in that prison.

1. High Court (Administrative Court): the appeal from the District Judge’s extradition rulings was dismissed. The Secretary of State’s extradition orders therefore stood.