Paul Nicholls v Government of The United States of America

On a renewed application for permission to appeal in an extradition case, the appellate court must decide whether the district judge was wrong. It may conclude that the overall evaluation should have been different where crucial factors were weighed so significantly differently that the decision was wrong.

In a challenge based on Article 3 of the European Convention on Human Rights, the applicant must establish substantial grounds for believing that extradition creates a real risk of an irreducible life sentence. Where the district judge carefully evaluates competing expert evidence, prefers one account for cogent reasons, and reaches a conclusion supported by the evidence, an attempt to reargue the factual assessment does not establish an arguable appellate error.

The applicant was wanted for prosecution in the United States for alleged drug-trafficking and money-laundering conspiracies. The District Judge ordered the case to be sent to the Secretary of State, who subsequently ordered extradition.

The applicant argued that extradition would expose him to a real risk of an irreducible life sentence without parole, contrary to Article 3 of the European Convention on Human Rights. The District Judge rejected that contention, finding that a life sentence without parole was no more than a theoretical possibility. The applicant renewed his application for permission to appeal, challenging the evaluation of the sentencing evidence and the approach to the applicable Article 3 jurisprudence.

1. Renewed application refused. The applicant failed to show that the District Judge’s decision was wrong.
2. The applicable appellate approach, stated in Love v USA [2018] EWHC 172 (Admin), required the Court to decide whether the District Judge was wrong. The appellate court could conclude that the overall evaluation ought to have been different only where crucial factors had been weighed so significantly differently that the decision was wrong.
3. The District Judge had carefully assessed the competing evidence. Mr Sabelli’s ability to assess the likely sentence was limited because he lacked access to the complete investigation file. By contrast, Mr Pennington was the prosecuting attorney with access to the file and had undertaken an objective review of sentencing practices in comparable cases in the relevant district.
4. The District Judge was entitled to criticise speculative aggravating features, to take account of the absence of comparable life sentences, and to prefer Mr Pennington’s evidence. He gave clear and cogent reasons for doing so. The applicant’s submissions about the exceptional nature of the allegations sought to reargue matters that had failed below.
5. There was abundant evidence supporting the conclusion that there were no substantial grounds for believing that the applicant faced a real risk of life imprisonment without parole. The Court therefore did not need to decide the parties’ arguments concerning the second limb of the Sanchez-Sanchez approach or the relationship between that decision and Hafeez.

• High Court (Administrative Court): renewed application for permission to appeal refused.
• District Judge: ordered the case to be sent to the Secretary of State for extradition purposes on 9 January 2024.
• Secretary of State: ordered extradition on 26 February 2024.