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The Supreme Court’s list of judicial sittings reveals that the case of Norris v Secretary of State for the Home Department has now been listed to be heard by nine judges, including for the first time, the Lord Chief Justice, Lord Judge, sitting as an additional judge of the Court (although the “Case Details” has not yet caught up and only has 8 judges). The issue in the case is similar to that in the case of Gary McKinnon (in which leave to appeal was refused). Mr Norris is sought by the US on charges of price-fixing and obstructing justice. The House of Lords ruled in 2007 that the conduct in relation to price-fixing was not capable of amounting to an extradition offence as it was not a crime known to English law when it was allegedly committed. The case was sent back to the District Judge for a decision on the other charges in the indictment. The District Judge found there to be no bars to extradition.
Mr Norris’ appeal to the Divisional Court was dismissed ([2009] EWHC 995 (Admin)). The House of Lords gave permission to appeal on one issue namely whether the public interest in honouring extradition treaties is such as to require, in any extradition case, that an appellant must show striking and unusual facts or reach a high threshold when Article 8 is engaged.
This will be the second case – after JFS – heard by a 9 judge panel this term. In other words, two of the 14 hearings this term – 13% – will have been before 9 judge panels (and one a hearing before a 7 judge panel – A v HM Treasury).
As Mr Benjamin Pell points out to us, this can be contrasted with one 9 judge panel in the whole of 2009 in the House of Lords (Home Department v AF & [2009] UKHL 28) and one in the whole of 2008 (R (Gentle) & Anor v The Prime Minister [2008] UKHL 20). Since 1910 (R v Ball [1911] AC 47) 9 judge panels have only been used on three other occasions: A-G’s Reference (No.2 of 2001) ([2004] 2 AC 72), A v Secretary of State for the Home Department [2005] 2 AC 68 and R (Jackson) v Attorney-General ([2006] 1 AC 262).
The use of larger panels is an unexpected but important feature of the new court.