Compliance of extradition with speciality and ECHR, art 5


Re: Bowen v Secretary of State for Home Department & Anor [2016] EWHC 1400 (Admin)

The appellant sought to challenge the decision of the Home Secretary to order his extradition to the United States to face sexual offence charges.

First, the appellant argued that his extradition was prohibited by the Extradition Act 2003, ss 93(2)(b) and 95, which provided speciality protection, stipulating that extradited persons could not be tried or punished for any offences other than the offence or offences for which extradition had occurred. The appellant argued that, if extradited, he was likely to be the subject of a civil commitment order after serving his sentence, given the nature of the offences he was charged with, and that the proceedings leading to the making of such an order would include a consideration of conduct for which he had not been extradited.

The court considered the specialty agreement in the US-UK Extradition Treaty, the relevant provisions of the 2003 Act, the civil commitment procedure in New York and English authorities which suggested an unwillingness to treat the US’s approach to sentencing as being a breach of the specialty principle, where reliance on prior non extradited conduct occurred. It held that the US civil commitment process was a civil process where domestic law was concerned, designed to protect against future harm rather than past offending. As such, it did not breach the specialty principle.

Second, the appellant sought to argue that extradition was contrary to ECHR, art 5. The court stated that the human rights questions were to be considered by the extradition judge and the High Court on appeal. In order for art 5 to lead to a discharge of an extradition order, there must be a real risk of a flagrant abuse.

The court noted the difficulties with the art 5 argument, including the fact that two courts had previously dismissed the argument, that no new material could be relied on by the appellant and that there was no permission to make this challenge.

The extradition order was upheld.

Hugh Southey QC and Mark Summers QC were involved in this case.