Deya, R (On the Application Of) v The Secretary of State for the Home Department

After statutory extradition proceedings have concluded, the Secretary of State must withdraw an extradition order only where there has been a material change of circumstances or relevant new event which makes extradition incompatible with Convention rights. On a challenge to the refusal to withdraw the order, the court asks objectively whether the evidence established a real risk of such incompatibility; it does not review the Secretary of State’s decision by ordinary public-law standards.

A collateral challenge to criminal proceedings in the requesting state will not ordinarily undermine or suspend extradition. Only an extreme case, potentially demonstrating that the requesting state is acting in bad faith, could do so. Diplomatic assurances may be relied upon where there is no good reason to question their reliability and the proposed detention arrangements satisfy Article 3.

The claimant had been arrested in the United Kingdom in 2006 on a Kenyan request for extradition to face child-stealing charges. His statutory extradition appeals were dismissed by the High Court in [2008] EWHC 2914 (Admin), after which the Secretary of State repeatedly reconsidered alleged changes in prison conditions and related evidence.

The claimant later relied on Kenyan judicial review proceedings, including a purported order prohibiting continuation of the criminal case. The evidence established that the document was not genuine. The claimant sought permission for judicial review of the Secretary of State’s decision of 8 September 2016, maintaining that extradition would breach Articles 3, 5 and 6 of the ECHR. The central issues were whether the Kenyan proceedings constituted a material new event and whether the evidence showed a real risk of Convention-incompatible treatment or bad faith.

1. Renewed application dismissed. There were no properly arguable grounds justifying permission to apply for judicial review.
2. The applicable pre-amendment principles required the Secretary of State to withdraw an extradition order only where: (a) there had been a material change of circumstances or relevant new event since the statutory extradition proceedings concluded; and (b) that change or event rendered extradition incompatible with Convention rights. The court’s task was objective: it was to determine whether the evidence before the Secretary of State established a real risk of Convention infringement, particularly treatment contrary to Article 3. It was not to review whether the Secretary of State had exercised her discretion rationally or reached a sustainable decision.
3. A collateral challenge to criminal proceedings in the requesting state would not ordinarily undermine or suspend an extradition order. The Kenyan authorities were resisting the challenge and intended to proceed with the prosecution. Although an extreme case might show that the requesting state was acting in bad faith, these circumstances fell far short of that threshold. The claimant’s delay, failure to disclose the Kenyan proceedings promptly, and reliance on an inauthentic order further undermined the claim.
4. The dismissal of the claimant’s wife’s child-stealing case did not establish that the Kenyan authorities lacked a sustainable case against the claimant or were acting in bad faith. The two cases concerned separate defendants and the claimant’s alleged false assertion of paternity could be relied upon by the prosecution.
5. The Article 5 and Article 6 arguments were untenable. If the Kenyan judicial review succeeded, there would be no criminal trial; if it failed, there was no basis for concluding that the trial would be unfair. Any detention or bail issues could be addressed by the Kenyan courts.
6. The claimant’s Article 3 case also failed. The Cabinet Secretary of Kenya had given a specific assurance that the claimant would be held throughout in a single cell in the Special Unit at Kamiti Maximum Prison. There was no good reason to doubt the assurance, which was readily verifiable. On that footing, the evidence established that the Special Unit met Article 3 requirements and that extradition would not create a real risk of prohibited treatment.

Lord Justice Gross agreed, adding that the delay in resolving the extradition proceedings was alarming and that the Secretary of State should firmly manage such cases.

• High Court (Administrative Court): The claimant’s statutory extradition appeal was dismissed in [2008] EWHC 2914 (Admin).
• High Court (Administrative Court): The renewed application for permission to judicially review the Secretary of State’s later decision was dismissed in the present judgment.