Miao v Government of the United States of America

On a rolled-up application for permission to appeal in extradition proceedings, the court held that a high threshold applies where suicide risk is relied upon to resist extradition. The question is whether the risk remains sufficiently great, despite appropriate protective arrangements, to make extradition oppressive or incompatible with Convention rights.

Specific and detailed assurances from a democratic state governed by the rule of law may adequately manage that risk, even where wider prison conditions are subject to serious criticism. A requesting state’s duty of candour does not require disclosure of material already available to the requested person, particularly where it does not substantially undermine the extradition case.

The Government of the United States sought the extradition of the applicant to California to face a murder charge. A District Judge sent the case to the Secretary of State under section 87(3) of the Extradition Act 2003.

The applicant challenged that decision on grounds including suicide risk arising from mental illness, allegedly unsafe Californian prison conditions, oppression under section 91 of the Act, and abuse of process arising from an alleged failure of candour about prison conditions. The application to the High Court was a rolled-up application for permission to appeal under section 103(1). The central issue was whether the District Judge had been arguably wrong to accept the assurances and reject the abuse-of-process argument.

1. Disposition. The court, in a judgment to which both judges contributed, refused permission to appeal. The District Judge’s decision was not arguably wrong.
2. Suicide risk and oppression. The applicable threshold was high. The relevant inquiry was whether the risk of the requested person successfully committing suicide, whatever steps were taken, was sufficiently great to make extradition oppressive. The court also had to consider whether appropriate arrangements in the receiving state’s prison system would manage the person’s mental condition and suicide risk.
3. Assurances. The District Judge had correctly focused on the effectiveness of the assurances given by officials responsible for the county jail and post-conviction prisons. The principles identified in Othman v United Kingdom (2012) 55 EHRR 1 were not a checklist. The United States was a friendly democratic state governed by the rule of law, and its assurances were transmitted through the Department of Justice and given under pain of perjury. The assurances were specific, detailed, directed to the applicant’s clinical needs, and supported by arrangements for screening, treatment, monitoring, hospitalisation and suicide prevention.
4. The court accepted the approach in Giese v Government of the United States of America [2018] 4 WLR 103. General evidence of serious problems in Californian prisons, and criticism of officials in related litigation, did not make the applicant-specific assurances unreliable. The later Californian settlement judgment also gave no reason to alter that conclusion.
5. Abuse of process and candour. The limited disclosure duty in extradition cases concerns material which renders worthless, destroys, or seriously undermines the evidence relied upon. The duty of candour prevents a requesting state from advancing evidence or assertions known to be false or misleading. The applicant possessed the material relied upon, and it did not substantially undermine the requesting state’s case. The abuse-of-process ground was therefore unarguable.

1. District Judge. On 31 May 2019, District Judge Richard Blake sent the applicant’s case to the Secretary of State under section 87(3) of the Extradition Act 2003.
2. High Court (Administrative Court). The court dealt with a rolled-up application under section 103(1) of the Act and refused permission to appeal.