Hafeez v Government of the United States of America

In a Part 2 extradition appeal, the statutory conditions governing fresh evidence apply even where Convention rights are relied upon. Evidence available, or obtainable with reasonable diligence, will ordinarily be admitted only if decisive. A statutory power to remit a question to the district judge is not a means of obtaining a second hearing on fresh evidence.

A federal life sentence without parole does not violate Article 3 where the sentence is legally and practically reducible through compassionate release and executive clemency. Article 3 does not require release solely because of rehabilitation, nor does review necessarily have to be judicial or subject to judicial review. The high threshold for oppression under section 91 and for an Article 3 challenge based on prison conditions was not met.

The applicant faced extradition to the United States on serious drug-trafficking charges. The District Judge ordered his extradition, and the Secretary of State subsequently confirmed that order. The applicant sought permission to appeal and, if permission were granted, appealed on grounds concerning fresh evidence, a possible life sentence without parole, prison conditions, oppression arising from his physical and mental condition, and alleged abuse of process linked to the removal of co-accused from Kenya.

The Divisional Court considered whether fresh evidence could be admitted, whether extradition would expose the applicant to a real risk of treatment contrary to Article 3, whether it would be unjust or oppressive under section 91 of the Extradition Act 2003, and whether the alleged unlawful removal of co-accused affected the validity of the extradition request.

1. Fresh evidence. Permission to appeal was granted on the life-sentence issue, but the proposed fresh evidence was refused. Under sections 103 and 104 of the Extradition Act 2003, evidence available at the extradition hearing, or obtainable with reasonable diligence, is not ordinarily admissible unless it would have caused the district judge to decide the relevant question differently and order discharge. The test remains strict where Convention rights are relied upon. Section 104(1)(b) permits remittal to correct an error of law; it does not remove the statutory restrictions on fresh evidence or permit a second evidential hearing.
2. Life imprisonment without parole. A life sentence is compatible with Article 3 if it is de jure and de facto reducible. The United States system provided routes through compassionate release under Title 18 paragraph 3582 and executive clemency. Rehabilitation need not, by itself, require release. Executive rather than judicial review may satisfy Article 3, and judicial review of the reviewing decision is not essential. The court declined to treat Trabelsi v Belgium as conclusive, preferring the approach in Harkins v United Kingdom and the principle that the precise review mechanism is principally for the relevant state to determine.
3. Oppression and prison conditions. The applicant’s medical conditions were not sufficiently serious or unusual to make extradition unjust or oppressive under section 91. The evidence concerning detention conditions was speculative and did not establish a real risk of Article 3 ill-treatment. Solitary confinement or placement in a high-security facility would not, without more, establish such a breach.
4. Abuse of process and Article 6. There was insufficient evidence that the United States had been complicit in the unlawful removal of the co-accused from Kenya. The extradition request was bona fide and was not made for a collateral purpose. Any challenge concerning evidence or the treatment of the co-accused was for the United States courts. Permission was refused on the remaining grounds, and the appeal was dismissed on the Article 3 life-sentence ground.

1. High Court (Administrative Court): The District Judge ordered extradition on 11 January 2019. The Secretary of State ordered extradition on 5 March 2019. The Divisional Court granted permission on the life-sentence issue, dismissed the appeal on that ground, and refused permission on the other grounds.