Dempsey v Government of the United States of America

A prosecution appeal remitted under section 106 of the Extradition Act 2003 does not create a fresh extradition hearing. The judge must continue from the actual earlier hearing and take the step that would have followed had the remitted question been decided differently. New bars or issues cannot be raised at that stage. The statutory scheme and the Criminal Practice Direction require a single, comprehensive hearing in which all grounds are identified and determined. Fresh evidence emerging after an appeal should be advanced by an application to reopen the appeal under the Criminal Procedure Rules. Article 3 requires a stringent, individualised real-risk assessment. General evidence about prison conditions, segregation, medical provision or isolated incidents is insufficient without a demonstrated risk to the requested person.

This was the appellant’s second appeal concerning an extradition request to the United States. At the first extradition hearing, the District Judge discharged him after finding that the conduct alleged did not constitute an extradition offence, but decided against him on extraneous considerations and abuse of process. The United States successfully appealed that decision in Government of the United States of America v Dempsey [2018] EWHC 1684 (Admin), and the case was remitted.

On remittal, the District Judge reversed the extradition-offence decision and sent the case to the Secretary of State, but declined to consider a new Article 3 argument based on prison conditions in California. The central questions were whether the remitted hearing permitted that new issue and, if so, whether the evidence established a real risk of treatment contrary to Article 3.

Appeal dismissed. The District Judge had no jurisdiction on remittal to hear an Article 3 issue that had not been raised at the extradition hearing.

1. Scope of remittal. Sections 106(6) and 106(7) of the Extradition Act 2003 required the judge to proceed as would have been required at the actual earlier hearing if the remitted question had then been decided differently. The reference to the extradition hearing was not to a hypothetical fresh hearing. Had the extradition-offence question been decided differently in 2017, the judge would have considered the issues raised and sent the case to the Secretary of State. The remittal therefore did not permit a new issue or a second appeal.
2. Single comprehensive hearing. The statutory scheme was intended to avoid delay, repeated hearings and successive appeals. Although section 78(6) required discharge when the extradition-offence issue was decided against the requesting state, the judge was entitled and ordinarily required to determine all issues raised. The Criminal Practice Direction required the requested person to identify every ground relied upon so that extradition could be addressed at a single, comprehensive hearing. The District Judge had correctly followed the approach supported by Romanian Judicial Authority v Bohm, Spain v Warne and McIntyre v Government of the United States.
3. Fresh evidence. The proper route for fresh evidence arising after an appeal was an application to reopen the appeal under the Criminal Procedure Rules Part 50.27. Adopting the analysis in Government of the United States v Bowen, the court treated the requirements as cumulative: reopening had to be necessary to avoid real injustice, the circumstances had to be exceptional, and there had to be no alternative effective remedy.
4. Article 3. The test required substantial grounds for believing in a real and individualised risk of torture or inhuman or degrading treatment. The evidence did not establish even a generalised violation. Administrative segregation was not solitary confinement; the cell conditions and recreation arrangements did not approach Article 3 ill-treatment; isolated assaults did not establish systemic failure; and the appellant’s mild depression did not demonstrate a relevant medical risk. Even if the court had jurisdiction to consider the issue, the appeal would have failed. Reopening was unnecessary to avoid real injustice.

The later Supreme Court pronouncement refused certification of the proposed points of law and refused leave to appeal.

1. High Court (Administrative Court). On the present appeal under section 103 of the Extradition Act 2003, the court upheld the District Judge’s refusal to consider the new Article 3 issue and dismissed the appeal: [2020] EWHC 603 (Admin).
2. High Court (Administrative Court). In Government of the United States of America v Dempsey, the United States’ appeal was allowed and the case was remitted under section 106; the appellant’s cross-appeal was unsuccessful: [2018] EWHC 1684 (Admin); [2018] 4 WLR 110.
3. Westminster Magistrates’ Court. The District Judge initially discharged the appellant on the extradition-offence issue, later reversed that decision following remittal, and sent the case to the Secretary of State. The judge declined to determine the new Article 3 issue.