Ngoc Son Do v Czech Republic

In a renewed application for permission to appeal an extradition order, the court must identify an arguable error in the lower court’s application of Article 8 of the European Convention on Human Rights. Factors arising from trafficking or modern slavery may carry weight in the proportionality balance, but they do not create an automatic bar to extradition where the issue has been properly considered and adequate protection is presumed. New evidence available at the original hearing will generally require a good reason for its late introduction. Even when admitted, it must be capable of showing that the lower court’s decision was arguably wrong.

The applicant sought renewed permission to appeal against an extradition order made by District Judge Leake on 22 September 2023 in respect of two Czech conviction warrants. The District Judge accepted, on limited evidence, that the applicant was probably a victim of trafficking, slavery and physical assaults. He nevertheless concluded that the Article 8 balance decisively favoured extradition, having regard to the public interest, the applicant’s recent conviction in the United Kingdom, and the effects of extradition on his family relationships.

Permission had previously been refused by Sir Duncan Ouseley. The renewed application relied on further evidence concerning trafficking and an alleged deterioration in mental health. The central issues were whether the District Judge had arguably erred in applying Article 8, and whether the new material justified permission despite having been available earlier.

1. Renewed application refused. The applicant had not shown any arguable error in the District Judge’s decision.
2. The District Judge was entitled to treat the applicant’s trafficking and modern slavery history as a factor in the European Convention on Human Rights Article 8 balancing exercise. That issue was not a freestanding bar to extradition. There was no challenge to the finding that the Czech Republic would respect its Convention obligations, or to the applicant’s entitlement to a retrial.
3. The District Judge had considered the relevant factors individually and cumulatively. His conclusion that the balance decisively favoured extradition was not arguably wrong. The effects on the applicant, his partner and her child fell within the adverse consequences ordinarily associated with extradition, as described by Lord Mance in Norris. The applicant’s status as a fugitive was not material to the conclusion because the District Judge stated that he would have reached the same result whether or not that status applied.
4. Applying Fenyvesi, the further evidence was available at the original hearing and no good reason had been given for its omission. In any event, consideration of that material alongside the existing evidence did not demonstrate that the Article 8 issue would have been decided differently.
5. The applicant’s renewed submissions about threats from traffickers and his family connections in the United Kingdom did not disclose an arguable basis for interfering with the District Judge’s assessment. The renewed application for permission to appeal was therefore refused.

• District Judge Leake: extradition order made on 22 September 2023.
• High Court (Administrative Court): Sir Duncan Ouseley refused permission to appeal on 7 February 2024. On renewal, the court refused permission to appeal.