Peter Kevin Miller v Government of Canada

In an extradition case, Article 8 ECHR requires a nuanced assessment of all relevant facts and circumstances, including the requested person’s conduct, family consequences, health risks and the public interest in extradition.

Fugitivity is not an automatic or decisive switch in the Article 8 balance. The court may stand back and evaluate the overall outcome, including cumulative features, but permission to appeal requires a realistic prospect that the extradition decision would be overturned as incompatible with Article 8.

The appellant, aged 72, sought permission to appeal against an extradition decision concerning allegations of fraud and theft in Canada. The Senior District Judge rejected his challenges, including the Article 8 ECHR ground, and the Home Secretary ordered extradition. Holman J refused permission on the papers.

On renewal, the appellant relied solely on Article 8 and sought to adduce fresh evidence concerning healthcare, Covid-19 risks in British Columbia and the effect of extradition on his wife. The central issue was whether those matters, individually or cumulatively, gave rise to a reasonably arguable basis for concluding that extradition would breach Article 8.

1. Permission refused. There was no realistic prospect that a substantive appeal would overturn the extradition decision or establish incompatibility with Article 8 ECHR.
2. The court was entitled, for the purposes of the renewed application, to consider the Article 8 balance afresh and to stand back from alleged individual errors. It considered the appellant’s points cumulatively rather than treating each feature in isolation.
3. Healthcare concerns during possible bail in Canada did not establish a reasonably arguable Article 8 case. The evidence indicated some safety-net provision, and the suggestion that the appellant would obtain bail while being destitute was speculative, particularly because bail would require a residential address.
4. The Covid-19 evidence was insufficient. The Senior District Judge had considered the medical impact, the changing situation, previous surges and the authorities’ ability to contain future outbreaks. The fresh evidence was incapable of being decisive.
5. Article 8 required a nuanced assessment of all the circumstances. Fugitivity was not an on-off switch, but the appellant’s conduct in avoiding investors and investigation could be taken into account. The hardship to his wife, her available choices and support, the absence of significant delay and the seriousness of the alleged fraud were also relevant to the balance.
6. The absence of an arguable Article 3 violation was not determinative of Article 8, although it was relevant to the overall evaluation.

• High Court (Administrative Court): The renewed application for permission to appeal was refused.
• Senior District Judge: By judgment dated 12 October 2020, the appellant’s extradition challenges, including the Article 8 ground, were rejected and the case was referred to the Home Secretary.
• Home Secretary: Extradition to Canada was ordered on 2 December 2020.
• High Court: Holman J refused permission to appeal on the papers on 3 February 2021.