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In the case of Norris v Government of the United States ([2010] UKSC 9) In the absence of any real guidance from Strasbourg the Supreme Court was called upon to determine the correct approach to Article 8 of the European Convention on Human Rights in extradition cases. Since the enactment of the Extradition Act 2003, the UK extradition courts have applied a hard line to Article 8. In fact, since its enactment in 2004, and notwithstanding a 1500% increase in extradition cases annually, there has only been one successful Article 8 challenge at appellate level (Jansons v Latvia [2009] EWHC 1845 (Admin)).

First, an ‘exceptionality’ threshold test had been applied (R (Bermingham) v Director of the SFO [2007] QB 727). Then, when that was held (in the context of immigration) to be wrong by the House of Lords in Huang v Secretary of State for the Home Department [2007] 2 AC 167, the extradition courts appeared to apply a ‘striking and unusual facts’ threshold test instead (Jaso v Central Criminal Court No. 2 Madrid [2008] 1 WLR 2798).

The Supreme Court was called upon to decide, essentially, whether the requirement to show ‘striking and unusual facts’ amounted, in reality, to an exceptionality threshold test imposed by the back-door. But, in argument before the Supreme Court, the scope of debate had been substantially narrowed. It was agreed that the Court cannot impose ‘exceptionality’ as a legal threshold in place of the test of proportionality. It was also agreed that, in reality, the circumstances in which interference with Article 8 rights will be disproportionate will be exceptional.

With these concessions in mind, the core issue of principle for the Supreme Court was, therefore, simply what is the correct approach to Article 8 in extradition cases?

The UK courts have forged a hard line in extradition cases of late in respect of human rights generally. In ‘foreign cases’ (cases where the defendant alleges that expulsion will expose him or her to a violation of Convention rights – invariably Articles 3 or 6 – in the Requesting State), the courts impose in Article 3 cases a heightened ‘minimum severity’ threshold having regard to the desirability of extradition. What would violate Article 3 in a domestic prosecution will not necessarily do so in an extradition case (the ‘relativist approach’). That is the effect of the majority decision of the House of Lords in R (Wellington) v Secretary of State for the Home Department [2009] 1 AC 335; a decision acknowledged by the Supreme Court in this case to be a ‘controversial’ one.

Cases in which Article 8 arguments are raised are, by contrast, ‘domestic cases’ (where the defendant alleges that expulsion will expose him or her to a violation of Convention rights that presently subsist in the United Kingdom). Would the Supreme Court attempt to carry over its ‘controversial’ decision in Wellington into this arena?

There were powerful arguments for not doing so, aside from the controversial nature of Wellington. The application of Article 8  in deportation cases is now the subject of a settled line of authority in Strasbourg in which a balanced and nuanced fact-specific approach is applied (see Boultif v Switzerland (2001) 33 EHRR 50; Uner v The Netherlands (2006) 45 EHRR 421; Khan v United Kingdom Decision of 12 January 2010). As recently as 2004, the House of Lords had held that, in the context of fundamental rights, no distinction was to be drawn between expulsion and extradition cases (Ullah v Special Adjudicator [2004] 2 AC 323), as had the European Court of Human Rights (Cruz Varas v Sweden (1991) 14 EHRR 1). After all, like immigration, the act of extradition constitutes an interference with the exercise in this country of the right to respect for private and family life, and, like in immigration, that interference is inevitably in accordance with the law. The critical issue in both scenarios is one of proportionality.

The nine-member constitution of the Supreme Court included only two Law Lords from Wellington; Lady Hale from the majority and Lord Brown who had strongly dissented.   However, the Supreme Court unanimously favoured the Wellington approach (albeit without expressly importing the full breadth of the ‘relativist’ approach). It held that the public interest in extradition is of a different order to that which pertains in deportation cases and, in every extradition case, weighs heavily against the defendant. The proper approach is to determine the seriousness of the interference rather than simply whether the circumstances are exceptional, but an interference will have to be exceptionally serious to outweigh the public interest in honouring extradition arrangements. In extradition, some exceptionally compelling feature of interference is required to succeed, and one that goes beyond the interference that would apply had the case been a domestic prosecution. The Supreme Court acknowledges that this is an approach that is likely to produce the same result in practice as a threshold exceptionality requirement.

The Fourth Section of the European Court of Human Rights has recently indicated that it intends to give judgment in Wellington v The United Kingdom in the near future (the Statement of Facts and Issues is here). By erecting, at least in part, the Article 8 approach upon Wellington’s foundations, this Supreme Court decision, notwithstanding the fact that it was made by a 9 member bench, has the potential to be one of its shortest lived.

But, all that said, it is apparent that the approach to Article 8 is now flexible in one significant respect. The Supreme Court was unanimous in its ruling in favour of Mr. Norris’ submission that, at least where the nature or extent of the Article 8 interference is exceptionally serious, the gravity of the crime in question is a relevant factor in assessing the weight of the public interest. Whilst the existence of a public interest in maintaining effective extradition arrangements is a significant constant in every case (‘at some level of abstraction or generality’), the Supreme Court was clear that its weight will vary according to the gravity of the offence. The 12-month minimum sentence requirement of the principle of dual criminality leaves scope for a very wide variation in seriousness. Thus, an exceptionally serious interference may be more easily shown to be disproportionate in the case of a more trivial crime; a very live issue in the context of the European Arrest Warrant scheme. To that end, it can readily be assumed that the recent decision of the High Court on triviality in Hubner v District Court of Prostejov, Czech Republic [2009] EWHC 2929 (Admin) no longer represents good law.
 
The Supreme Court also decided two other subsidiary issues of principle. First, the Article 8 rights of other family members must be considered (applying Beoku-Betts v Secretary of State for the Home Department [2009] AC 115); observing that the effect on innocent family members may well be a particularly cogent consideration.

Secondly, whilst acknowledging the correctness of earlier judicial statements to the effect that the possibility of prosecution in the United Kingdom may be a relevant factor, the Supreme Court ruled that it would  rarely if ever be capable of tipping the scales in practice; extradition is not the occasion for debate on forum and the issue should not even enter into the enquiry unless the scales are already finely balanced (an unlikely even in light of the Court’s decision on the primary point of principle). Whatever the immediate future holds for this decision overall, this aspect of it is entirely in line with Strasbourg case law and the prospects of the ‘forum’ amendments to the Extradition Act 2003 (contained in the Police & Justice Act 2006 as a result of public debate occasioned by the UK / USA extradition arrangements, but as yet not enacted) look ever more unlikely to ever become law.